CASE NO: CCT 15/95 In the matter between:
ANNETTE BRINK Applicant AND
ANDRfe KITSHOFF NO Respondent IN RE:
IN THE SUPREME COURT OF SOUTH AFRICA (TRANSVAAL PROVINCIAL DIVISION)
CASE NO: 12147/94 In the matter between:
ANDRe KITSHOFF NO Applicant AND
ANNETTE BRINK First Respondent LIBERTY LIFE ASSOCIATION OF AFRICA
LIMITED Second Respondent THE MASTER OF THE SUPREME COURT Third Respondent
RESPONDENT'S FURTHER SUBMISSIONS
1.
From the written submissions filed on behalf of Applicant the following appear:
1.1 The Court is requested to order that section 44 is declared invalid as from 27th April 1994.
1.2 In paragraph 7.7 an ex abundanti cautela order is furthermore suggested.
1.3 In the alternative section 44 may be declared invalid as from date of the order. The submission is that Applicant will not be detrimentally affected by such an order.
1.4 Ex abundanti cautela an order as set out in paragraph 18 of the further submissions is suggested.
1.5 In conclusion it is contended that if section 44 were to be declared invalid, Respondent will in any event not have locus standi to claim payment of the proceeds of the policy.
2.
2.1 The conclusion to be drawn from the submissions filed on behalf of Applicant, is that an order as provided for in section 98(6) of the Constitution is not needed or required by Applicant, as her rights are in any event not impaired.
2.2. On behalf of Respondent it is submitted that if Applicant's viewpoint were to be correct, no order as provided for in section 98(6) should be made.
3.
3.1. Having regard to section 98(6) the Court's power to order "otherwise" in the interests of justice and good government should be exercised circumspectly.
S v ZUMA AND OTHERS. 1995(2) SA 642 (CC) at p. 663G.
As was furthermore stated by Kentridge AJ;
"In some cases (and I believe that this is one of them) the interests of individuals must be weighed against the interest of avoiding dislocation to the administration of justice and the desirability of a smooth transition from the old to the new."
S v ZXJMA. supra p. 663G.
3.2. It is furthermore submitted that in the absence of any evidence indicating that an order to be made in terms of section 98(6) will be in the interests of justice and good government, no such order in this case should be made. The facts of this case are not comparable to facts such as to be
found in S v ZUMA AND OTHERS, supra where "a proper balance can be struck".
3.3. The problems that may arise and as set out in paragraph 10 of Applicant's further submissions, clearly emphasize the difficulty in striking such a proper balance.
4.
4.1. In terms of section 98(6) of the Constitution and if an order were to be made that sections 44(1) and (2) are invalid [which will by implication include the provisos contained in both sections 42 and 43] such declaration of invalidity shall not invalidate "anything done or permitted"
in terms of section 44, before the coming into effect of such declaration of invalidity.
4.2. This Honourable Court has no power to order that something done or permitted after the date of its order is valid, if in terms of section 98(6) it is invalid. The reason for making this submission is the following: If this Court were to be of the opinion [which decision it is submitted they need or should not be required to make] that the phrase "done or permitted" relates to the date of winding-up of the estate and that any
order to be made may have the result of an abundance of further
litigation, the Court cannot make an order that its order should only have an effect on future insolvencies.
4.3. From the aforesaid it is thus clear that the words "anything done or permitted" in the context of the facts of this case, are crucial and should
be properly interpreted. Does it mean that something was "permitted" as a result of the ex lege provision contained in section 44, or does it mean that something de facto had to be done before something was so permitted?
4.4. The answer to the aforesaid question may be obvious in which event a Court will not be asked to decide such an issue. On the other hand the issue may not be so clear, in which event a Court may be approached to make such a decision. It is submitted that whatever the position may be, this should not be a concern for this Honourable Court.
4.5. If it were to be found that the interest of avoiding dislocation to the administration of justice and the desirability of a smooth transition from the old to the new will suffer as a result thereof, the only alternative way of avoiding this, is if an order in terms of section 98(5) were to be made that Parliament is required in a period specified by the Court, to correct the defect in section 44. Section 44 will remain in force pending such correction, but Applicant's position will not be affected thereby, as far as
her right to claim payment is concerned. Had something been done or permitted, she has no right and no order to be made at this stage can have a bearing on such issue.
5.
In conclusion it is submitted that in so far as section 98(6) is concerned, no such order need to be made.
6.
6.1 It is respectfully pointed out that the Master of the Supreme Court of South Africa (Transvaal Provincial Division) is a party to the proceedings, although so far he has not taken an active interest in the matter
6.2 Respondent asked the Master to comment upon the question as to what order should be made and the effects of an invalidating of section 44. However, the Master referred the matter to the Justice Training College and Respondent is informed that the said College will only be in a position to answer within the course of the following week.
Respondent thus is not in a position as at serving and filing of these additional heads of argument to incorporate the Master's submissions herein.
DATED at PRETORIA this 17th day of NOVEMBER, 1995.
A JLOI
RESPONDENTS COUNSEL
